| > But the other side, just as important, spelled out in the law, is not operating your service with foreknowledge of infringement. It isn't enough just to wait for copyright holders to send takedowns. > By actively courting piracy, MegaUpload forfeited safe harbor protections. You are segueing between talking about DMCA "red flag" knowledge and the inducement standard from Grokster in a rather confusing way. If we're talking about DMCA "red flags", one needs knowledge (not foreknowledge) of specific acts of infringement, not merely knowledge of infringement in general[1]. There may have been an email proving that, as it's been quite some time since I read the indictment, but I don't remember one offhand involving Kim Dotcom himself. Then you talk about something that sounds like inducement. That's something the Supreme Court invented in Grokster and it's a different standard altogether. It's a theory of vicarious liability that relies on "purposeful, culpable expression and conduct" while "mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability." [2] I should also point out that Viacom had some incriminating emails from YouTube staff, which I believe you can find in some of the old Ars coverage of that case, but which I don't know the proper link to. But YouTube largely won the perception battle because of the obvious non-infringing uses of the site and because they went well above and beyond their DMCA obligations (though Viacom still sued them). Mega is losing the same battle of perception because almost all of the non-infringing uses of their site were private (people sharing files among friends, rather than with the general public), while all infringing uses of the site were necessarily public. So even if they had a million innocent users and a thousand pirates, you'd only see all the files put up by the pirates and the million users would be largely invisible, because they had no interest in sharing their home movies (or whatever) with the world. [1] "UMG v. Veoh held that generalized knowledge of infringement, without more, is not enough for red-flag knowledge" -- http://www.ipinbrief.com/dmca-contributory-infringement-vica... [2] http://www.law.duke.edu/publiclaw/supremecourtonline/comment... |
That's obviously just Dotcom. When you broaden the inquiry to Mega's key employees, you find instances of them directly handling and uploading infringing content to the site.
Most damning from what I can read is the details of the affiliate program. In emails discovered by the DOJ, we have line-by-line accounting of Mega issuing payouts to people in which the actual line items specify that the activity being rewarded is infringing.
All of these, obviously, are cases in which Mega is shown to have actual, specific, actionable knowledge of infringing activity on their site. Rather than acting to retard infringement on the site, they are shown to abet it, groom it, and in many cases incentivize it financially.
All this should be obvious to anyone involved trying to run a content company on the Internet, of which there are many on HN. Does money fall out of the sky the moment you open a content site? No it does not. Most content companies fail, and portfolios are littered with the bones of companies that tried to make a go of file hosting.
What made Mega so profitable? Come on. We know what made Mega profitable. I don't understand why spend so much time vigorously kidding ourselves about this.
We've talked about this before; we both know that we've both read the indictment. To my mind: Mega is losing whatever "public perception" battle that they're losing because they're obviously a bunch of crooks. I'll happily soak up some downvotes in exchange for the ability to speak plainly. :)
Incidentally: my reading of the law doesn't come from Grokster; it comes from a plain reading of the DMCA, where the steps required to obtain safe harbor status are literally laid out in bullet points.